When 'just a tragic accident' just sharpens the pain

They are parents and so, at night, they still wait for Erin to come home, but the very thought instantly triggers another that hits Paul and Christine Leary like a physical blow. Worse than a physical blow. Because the pain doesn't subside.

Erin Leary isn't coming home. She's dead.

The 21-year-old Cranford resident was killed by a car while she crossed Westfield Avenue in Clark with her boyfriend May 18. Nearly two months later, her parents say they still don't have all the information about the accident. And they say they are stunned to find out that such an accident doesn't automatically trigger police actions they expected -- alcohol testing of the driver, for example, or the issuance of a summons.

Scores of Leary's family members have sent messages to the Clark police and the Union County prosecutor's office demanding that something -- anything -- be done.

But nothing is going to be done. Not by law enforcement. The Learys themselves have filed a complaint against the driver, identified by police reports as Eleanor Gordon of Rahway. The case is scheduled for July 23 in Clark municipal court.

New Jersey -- like many states -- does not require either the issuing of a summons to, or a sobriety test of, the driver in the case of a fatal pedestrian accident. That's one of the things the Leary family hopes to change.

"You would think there would be an automatic assumption of at least careless driving if a motorist strikes and kills a pedestrian," says Tim Collins, Erin's uncle. "Or an automatic DWI test." He says he has been in contact with legislators willing to try to change the law.

The Learys say the responses they received from the Clark police and the county prosecutor have only added to the pain of losing their daughter, an aspiring artist.

"We hear the same things, over and over again," says Christine. "It starts with, 'We know how you feel,' when no one could possibly know how we feel. I think I'll scream if I hear that again."

There's more. The phrase "just a tragic accident" has been used in this case, from reports written shortly after it happened to the final judgment of the prosecutor's office. The Learys believe both offices rushed to judgment, deciding it was "just a tragic accident" before the investigation was completed.

For example, two witnesses to the immediate aftermath of the accident said they saw a car whose driver must have seen the accident because it was in front of theirs as they approached the scene. The police have so far been unable to find that car or driver.

The Learys also resent what they say is an effort to blame their daughter for her own death.

"Almost immediately, we were told Erin was wearing dark clothes, as if that somehow caused the accident," says Christine. Erin's clothes were discarded by Rahway Hospital staff after she died there shortly after the accident.

She was struck shortly after 8:30 p.m. when it was not yet completely dark. Her boyfriend told police the car veered toward them. The police report says the driver said she did not see Erin. The Learys are seeking access to taped interviews with them and with other witnesses.

"We don't have everything we need to find out what happened," says Paul.

Eileen Walsh, a spokeswoman for the Union County prosecutor's office, said no evidence justified charging the driver with vehicular homicide. She also said there was "no probable cause"-- telltale odors or behavior -- that justified a sobriety test.

She also said nothing justified the issuance of a summons for careless driving, even if a pedestrian was struck and killed. The statute reads, "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving."